Judge says Virgin Care award did not comply with law but refuses to halt process

A High Court judge has ruled that the decision by Devon County Council and NHS Devon to name Virgin Care as preferred bidder for a multi-million pound children’s services contract failed to comply with the law.

However, the judge has declined to prevent the contract from being awarded. This was in part because the abolition of Primary Care Trusts in March 2013 means that there is no room for slippage in the procurement process.

Adam Hundt, a partner at claimant law firm Deighton Pierce Glynn, said: “The contract is tainted by illegality, and although my client is disappointed that the court was not willing to stop the process, she is pleased that this judgment makes it clear that outsourcing decisions of this kind will engage the public sector equality duty, and that the impact of outsourcing to the private sector cannot be dismissed as having no impact on service users, and has to be carefully assessed at a sufficiently early stage of the process in order to be lawful.”

In July the local authority and NHS Devon said Virgin would take over responsibility for managing Integrated Children’s Services (ICS) – a partnership between the two public bodies.

The ICS provides a range of health and social care services including public health nursing, mental health and wellbeing and physical, sensory and learning disability.

Deighton Pierce Glynn brought the case on behalf of a parent whose children require services. At issue was whether the county council and NHS Devon had due regard to equality implications of the decision and whether they complied with their own equality policies.

In a joint statement, NHS Devon and Devon County Council said: “Meeting the needs of vulnerable children and their families has always been at the heart of our decision to work with Virgin Care.

"We firmly believe that the process we followed which involved large numbers of parents and carers, professionals and young people was thorough and conducted with great care. Although disappointed that the judge found that we did not initially fully discharge our public sector equality duty, we are pleased that he recognises that we have now addressed this. We will continue to focus on this duty during the remainder of the process.”

The two organisations said they welcomed the judge’s comments that the decision to keep integrated children’s services together was the right one, and that the decision regarding the preferred bidder should not be quashed.

They added: “We are pleased that given the clear public interest in safely transferring these services, the judge has ruled that we can progress with our plans to award a final contract by March 31, 2013."

Philip Hoult